Much has been made about Judge Scalia’s majority opinion requiring the testing technician to appear in court. We have a “demand statute” in Maryland, where defense counsel is required to request the technician’s appearance if the State has provided the test results sufficiently in advance and advised they will not call the technician. This procedure is still acceptable under the Supreme Court’s opinion. It does not offend the Confrontation Clause to require an accused to exercise the right before trial. The “demand statute” governs the timing, and does not act as an abridgment of the constitutional right. A footnote states that the maintenance technician does not fall within the persons constitutionally required. Because Maryland has a procedure for summonsing the State Toxicologist, his appearance may be required even absent a request. This is an issue that has been batted around in different courts where we have sought to bring him in to testify about how the instrument is approved and then re-certified. The nuances of these procedures may require his appearance without a subpoena, and this may be a new way to challenge the accuracy of breath testing in a DUI in Maryland.
Archive for June, 2009
Supreme Court Ruling in Melendez-Diaz http://supct.law.cornell.edu/supct/html/07-591.ZS.html
Monday, June 29th, 2009KEEPING THE BREATH TEST OUT OF EVIDENCE IN THE DUI CASE IN MARYLAND
Monday, June 1st, 2009Because of defects in the procedure for the administration of breath tests, I have been successful in having judges refuse to admit DUI breath test results. This requires the knowledge of all aspects of the procedure and how various statutes and regulations intertwine. It took three hours a few weeks ago in Howard County District Court to try this issue, with a result of Not Guilty. The police officer was “certified” to administer the Field Sobriety Exercises, but did not know the procedures outlined in the NHTSA training manual, and substituted his own procedures. It is hard to “fail” an improperly administered test, especially when the NHTSA manual states that their procedures are the only procedures. The Howard County District Court Judge, a former prosecutor herself, had no choice but to enter a verdict of Not Guilty. In argument before the Howard County District Court Judge, I used the example of the facts of our first jury trial against one another to show why the statute why I was correct about the procedure for breath testing. Last week a second case before the same Howard County District Court Judge resulted in a plea to a lesser offense because the same issue was presented. In a trial in Baltimore City District Court, the judge refused to admit the breath test and rendered a Not Guilty verdict. Some Baltimore County prosecutors are not calling the breath technician because they recognize that the Baltimore County District Court Judge is not going to allow the breath test into evidence. Rather than have the entire courtroom and attorneys educated in this defense, it is easier and wiser to try the case without the test. On June 29, 2009 in another Baltimore County DUI the State decided to proceed without the breath test because it was not admissible. Although the judge learned of the test result for sentencing, it was agreed that it might be inflated because of the procedural problem. The high result was not held against the client, and he received a Probation before Judgment to the reduced charge.
JURISDICTIONAL ISSUES WITH THE MARYLAND TRANSPORTATION POLICE
Monday, June 1st, 2009Recently in Baltimore County District Court I was able to suppress a stop and the resulting arrest of a client because the Maryland Transportation officer could not prove he had authority to stop my client. The same argument was rejected in Anne Arundel County because the judge had in her chambers the Master Agreement and maps outlining the officer’s jurisdictional limits. The jurisdiction had just been expanded to include the portion of the interstate where my client was stopped. The Anne Arundel County District Court Judge acquitted anyway after it was shown that the Field Sobriety Exercises were performed in the rain, and done rather well for the conditions that existed.
SEARCH AND SEIZURE UPDATE ARIZONA V. GANT ( http://supct.law.cornell.edu/supct/html/07-542.ZS.html )
Monday, June 1st, 2009I was asked in 2004 by a judge to participate in his trial advocacy course at a local law school. I suggested that he use the Thornton v. United States ( http://supct.law.cornell.edu/supct/html/03-5165.ZS.html ) case as his teaching example because Justice Scalia’s concurring opinion was going to become the new standard when the issue was next presented to the Supreme Court. In April, the Supreme Court did exactly that in the Gant case. Quite simply, if you are arrested to driving while suspended, cuffed, and placed in the rear of a police car, there is no reason to search you car. You no longer present a threat to the police and there is no evidence of that crime to be discovered in the car. The logic of this is quite simple, but the jails are full of people who had drugs or other contraband recovered in their cars as a result of these “Search Incident” searches. Although the logic is simple, the end result is not. Will police now “routinely” do an Inventory Search because they have decided to have the vehicle towed rather than leave it parked on the shoulder of a highway or parked on the street. There will now need to be an exhaustive cross-examination of the officer about his practices prior to Gant. A subpoena for previous police reports in these types of traffic offenses may be the most effective method of revealing what was the officer’s pre Gant practice regarding towing. Baltimore County police officer routinely tow vehicles in DUI cases. The Maryland State Police will leave the vehicle on the shoulder of the interstate if it is not impeding traffic. The Maryland State Police have jurisdiction throughout Anne Arundel County, Baltimore County, Carroll County, Cecil County, Harford County and Howard County. They do not operate in Baltimore City. The Maryland Transportation Police also operate not only on the toll roads, but parts of the interstate.
CROSS-EXAMINING WITH THE NEW “DWI (Driving While Intoxicated) DETECTION & STANDARDIZED FIELD SOBRIETY TESTING”- February 2006 Edition”
Monday, June 1st, 2009Most police no longer have the NHTSA Manual they were “certified” on. Those that do don’t bring it to court. I NEVER subpoena the officer to bring his Manual because he can study the Manual before court and “remember” that he gave the precise instructions for each exercise in the Manual to my client. When I show the officers the 2006 DWI NHTSA Edition, they will confidently state that they were not trained with that manual and therefore didn’t follow those procedures. They don’t realize that if updated and improved, then the procedures they used were wrong. For example, doctors once used leeches to remove infections from the body. Someone came along and invented a pill to do the same and more effectively. If you were only trained with leeches, maybe you shouldn’t be doing this anymore. This cross-examination is funny and keeps the karma in the courtroom at the correct temperature. It also reduces the weight the judge gives to these exercises, and allows for a strong reasonable doubt argument. Baltimore County District Court Judges, whether in Towson, Catonsville or Essex have come to expect that I bring some humor to the courtroom.
NEW NHTSA “DWI (Driving While Intoxicated) DETECTION & STANDARDIZED FIELD SOBRIETY TESTING”- February 2006 Edition”
Monday, June 1st, 2009Well, after publishing and recalling the new manuals published in February 2006 and then in August 2006, NHTSA has now released the February 2006 manual as its newest. You think that maybe they should have called it the April 2009 DWI Edition (they reference the date inside)? I have not made a page by page comparison of the recalled and the “new” manuals because whatever they felt was wrong have been corrected. However, the essential procedure for each exercise remains the same.